Headline of the Day

The Legal Academy’s Leading Originalists Remain Breathtakingly Full of Shit

—Balls and Strikes, commenting on what has been obvious since the Powell Memo, that Origanalism is just an excuse to put a stamp of approval on bigotry and greed.

It should be noted that the above is the title on the web page. The one in the metadata is, "The Originalists Are Getting the Birthright Citizenship Case Spectacularly Wrong."

In this case, we see their venal hypocrisy in the birthright citizenship case, which requires that one ignore the text of the 14th Amendment, as well as every bit of speech and debate in Congress and the various state legislatures in the process of its approval. 

Last month, the Supreme Court agreed to hear oral argument in Trump v. Barbara, a case that challenges the constitutionality of President Donald Trump’s executive order purporting to redefine birthright citizenship. Although the Court has not yet put the case on the calendar, it will likely do so during this term, and issue an opinion before the justices adjourn for the summer.

The Fourteenth Amendment, which Congress adopted in the years following the Civil War, extended citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” Yet Trump declared last January that going forward, persons born in the United States would not be citizens unless at least one parent is a citizen or a lawful permanent resident. If the Court allows the executive order to take effect, it would deny citizenship to hundreds of thousands of newborn babies every year, and recreate an antebellum caste system in which social disadvantage is passed down by law from parent to child.

So far, every federal court to assess the order’s legality has recognized it as flagrantly unconstitutional. A federal district court in Maryland, for instance, concluded that the order “flouts the plain language” of the Fourteenth Amendment and “runs counter to our nation’s 250-year history of citizenship by birth.” A federal district court in New Hampshire found that the order “contradicts the text of the Fourteenth Amendment and the century-old untouched precedent that interprets it.” A federal district court in Washington called the Trump administration’s view of the Fourteenth Amendment “untenable,” and criticized the government for rehashing “losing arguments from over a century ago.” 

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Nevertheless, several Trump allies recently filed amicus briefs in Trump v. Barbara arguing that the order actually restores the original understanding of the Fourteenth Amendment. Former Attorney General Edwin Meese III, for example, characterizes over 150 years of settled constitutional understanding as “longstanding and mistaken assumptions.” The conservative law professor Ilan Wurman contends that the historical rule of birthright citizenship “almost certainly excluded the children born to unlawfully present aliens,” and is “at best unsettled” with respect to the children of “temporary visitors.”

The Claremont Institute, a conservative think tank, submitted an amicus brief that positions its work at “the forefront of the scholarly research” which demonstrates that birthright citizenship was not originally understood to include children whose parents “owed allegiance to a foreign power,” and were in the United States “only temporarily or illegally.” Claremont’s brief is authored by John Eastman, who is most famous for orchestrating Trump’s plot to overturn the 2020 election. The State Bar of California recommended that Eastman be disbarred and banned him from practicing law in the state, but apparently he’s still welcome to file briefs at the Supreme Court.

What these authors have in common is their professed adherence to some form of originalism, the idea that the Constitution’s meaning was set in stone when its provisions were enacted. Meese, for example, made it the policy of President Ronald Reagan’s Justice Department to “resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.” In a speech before the American Bar Association in 1985, Meese gave away the game a little, presenting originalism as a principled way to ensure that the Court did not “drift back toward the radical egalitarianism and expansive civil libertarianism” of the Civil Rights Movement.

Yeah, that's Ed Meese, saying, "We want to keep the n*****s down, and originalism can help with this.

Fuck them all with Cheney's dead dick.